Court’s promise is no guarantee (UPDATED)

Posted Mon, June 11th, 2012 12:53 pm by Lyle Denniston

(Final update 1:10 p.m.)

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The Supreme Court’s implied promise to local governments that they should not have to face one kind of civil rights lawsuit if they took action on the job to try to head off another kind did not work out to insulate the city of New Haven, Conn., and a local fire and rescue squad in New Jersey from having to defend themselves in court in just such a case. The Court, with no explanation, refused on Monday to hear two sequels to its 2009 ruling in Ricci v. DeStefano— a case that actually came back in the New Haven appeal.

The two cases were among a long list of denials of new cases on Monday. The Court did grant two new cases: one seeking to clarify when prosecutors may start a new trial after the first one had ended in a directed verdict of not guilty in the midst of the trial (Evans v. Michigan, 11-1327), and the second one asking the Court to spell out the kind of proof that investors must offer in order to take advantage of a short-cut method of pursing a securities fraud claim through a class-action lawsuit (Amgen, Inc., v. Connecticut Retirement Plans & Trust Funds, 11-1085). The cases will be heard and decided in the next Term, opening October 1.

The two civil rights cases that the Court opted not to hear were direct follow-ups to the Ricci case decided three years ago. The Court ruled there that a group of white and Hispanic firefighters in New Haven were entitled to have the city put into effect the results of written and oral exams to determine who was eligible to be promoted to the rank of lieutenant and captain.

After the tests were given and the results showed that black firefighters had not fared as well as others, the city refused to implement the results. The city attorney had advised that — if the local government went ahead — it would likely be sued under Title VII of civil rights law for taking an action with a negative impact on blacks (a “disparate impact” claim). But it was then sued in a “disparate treatment” lawsuit by the white and Hispanic firefighters who would have been eligible for promotion under the results. The city defended itself with the argument that it should not be liable for disparate treatment when it had acted to avoid disparate impact liability.

The Supreme Court took on the case to try to reconcile how the two strands of legal protection under Title VII work together. It concluded that an employer could make a claim that it had engaged in disparate treatment in order to avoid a disparate impact lawsuit, provided it had “a strong basis in evidence” for believing that it would be sued successfully for disparate treatment. The refusal to put the test results into effect, the Court added, did not meet that standard. But if the city did put the results into effect, that would provide the evidence that it had been attempting legitimately to head off a disparate impact claim.

That case then returned to lower courts. The city put the test results into effect, and was promptly sued in a disparate impact lawsuit by a black firefighter, Marvin Briscoe, who had not ranked high enough in his test score to be eligible for promotion. A federal judge threw out the lawsuit, saying lower courts were bound by the Supreme Court ruling that the city should escape liability for disparate impact because it had done what it did precisely to avoid such liability. The Second Circuit Court reversed, saying that what the Supreme Court had said about what would happen if a suit like Briscoe’s were filed was not necessary to the Justices’ ruling, and thus was not controlling. Briscoe was not a party to that lawsuit, and thus was not bound by it, the Circuit Court ruled.

The city of New Haven took the case back to the Supreme Court (New Haven v. Briscoe, 11-1024), arguing that the Circuit Court had “flagrantly disregarded” the Supreme Court’s ruling in the Ricci case. The Court made no comment as it denied review.

The Justices also denied review in a second case, North Hudson Regional Fire & Rescue v. NAACP (11-1247), in which that New Jersey emergency squad had adopted a hiring policy to try to deal with a claim that it was treating one race or ethnic group (local Hispanics) less favorably than another, and then faced a lawsuit from another racial group (black applicants) that its policy would have a negative impact on them. The dispute was over a policy of limiting hiring for the squad to those whose homes were in the communities served by the squad.

The NAACP and its local affiliates sued the squad, claiming that the policy would have a disparate impact on blacks living outside those communities. A federal judge ordered the squad to widen its policy to reach applicants in a larger area of New Jersey. That meant that North Hudson-area Hispanics would have to compete for positions with applicants in a much wider area; they took the case to the Third Circuit Court. The squad defended itself by arguing that if it gave up the residency requirement, it would face a disparate treatment claim by Hispanics, but if they kept it, they would face liability for a disparate impact on blacks. The Circuit Court, relying in part on the Second Circuit’s recent decision in the New Haven case, said that the Supreme Court’s 2009 ruling in Ricci was limited to its own facts.

In other denials, the Court refused to be drawn back into the ongoing controversy over public school principals’ authority to deny a student a right to express religious views at school, in a setting other than the classroom or some other school-sponsored activity. The Court refused to hear a petition by two students and an opposing petition by two school principals in Plano, Texas, centering on a few incidents in 2003 and 2004 when the students were not allowed to pass out gifts or messages to other students — away from the classroom but still on school property — when the objects or messages were religious in nature. The cases were Morgan, et al., v. Swanson, et al. (11-804), and Swanson, et al., v. Morgan, et al. (11-941).

The Court took no action Monday on two other closely watched controversies that the Justices had considered at their Conference last Thursday. One involved the constitutionality of the continued display of a large Christian cross on a hill, Mount Soledad, overlooking San Diego, and the other involved the constitutionality of a government fine of $550,000 levied against CBS-TV for the celebrated “wardrobe malfunction” incident at a Super Bowl football game’s half-time show when a female performer’s breast was exposed briefly. The Mount Soledad cross case (petitions 11-998 and 11-1115) has now been set for consideration at the Conference this Thursday. No new schedule has been set for the Super Bowl performance case; that apparently is being held until the Supreme Court issues its pending ruling on the constitutionality of the Federal Communications Commission anti-indecency policy (in 10-1293).

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.